Posted
by
Soulskillon Wednesday February 26, 2014 @07:20PM
from the for-reasons-you-might-not-expect dept.

cold fjord writes "The Verge reports, 'Google and YouTube must scrub all copies of Innocence of Muslims, a low-budget anti-Islam film that drew international protest in 2012, at the behest of an actress who says she received death threats after being duped into a role. The Ninth Circuit Court of Appeals has granted a temporary takedown order on behalf of Cindy Lee Garcia, who filed a copyright claim against Google in an attempt to purge the video from the web. While actors usually give up the right to assert copyright protection when they agree to appear in a film, Garcia says that not only was she never an employee in any meaningful sense, the finished film bore virtually no relation to the one she agreed to appear in. In a majority opinion, Judge Alex Kozinski said she was likely in the right.' — Techdirt has extensive commentary on the ruling that's worth reading. It seems likely there will be an appeal, with the distinct possibility that Google and the MPAA will be on the same side."

You're missing the point. The fact that you can get a copy of the movie using some technical workaround is meaningless.

The important point is that the law says you are not allowed to see it on YouTube. Its a right that you had yesterday that you do not have today. Part of the massive, slow and irreversible erosion of our rights.

Actually - no. It is my right to see or hear any damned thing I choose to see or hear, if it is otherwise freely available on the net or on the airwaves. It isn't a "privilege" and I need no one's "permission". It is a "right".

These judges are stepping on the people's right to share views, opinions, and information.

This woman is getting death threats? Hmmm. So, her fear of the death threats trumps the people's right to communicate freely? Oh - well then - I can understand now why the NSA must monitor

That was terrible choice of example - since the right to life has *always* trumped free speech rights and death threats are specifically (and have always been) excluded from said right.Now whether you can extend "you may not make death threats" to "you can suppress something because it leads to death threats" is an entirely *different* debate - but your wording was terrible - because it's a long established thing that somebody's right not to receive death threats DO trump freedom of speech - at least of tho

I think you are misusing the word 'right', what you should be using is permission or privilege.

No. No, he did not misuse the word.

We have a first amendment right protecting us from the government saying what we can and can't say. You may find IoM horribly offensive, but the systematic attempts to censor it since release amount to nothing less than a violation of that right.

This BS line about the director "tricking" the actors amounts to little more than prison camp guards crying about just following orders. "Oh shit, that jokey inflammatory C-movie we made actually got someone's attention? Quick, deny, deny!"

I watched the "Innocence of Muslims" and it is almost unwatchable, but historically accurate, but the acting is terrible and the movie is certainly offensive to Muslims -- or at least the ones that kill Dutch people over political cartoons -- so it is hard to decide if there is a true loss here, entertainment-wise.

But the government shouldn't be deciding what we watch on the boob-tube, the Internet tubes or Youtube or even Their-Tubes. Not even their own tubes, but that is a story for

I haven't watched it, and even if I had I wouldn't be able to comment on its historical accuracy. But given how long ago the subject lived it strikes me as unlikely that any current movie could claim such accuracy, even if they made a point of trying -- which IoM didn't, from what I've heard.

Also I think you are confusing the cases of a Dutch columnist who was murdered and a Danish cartoonist who was threatened, so historical accuracy doesn't appear to be your forte either (no offense).

What makes you say the film is historically accurate? What would you say is the primary intent of the movie -- informing the public? If either were true, why did the makers had to deceive the actors -- who were working with a different script than what ended up in the movie apparently -- and overdub significant portions of their lines?

As to the pedophile prophet meme... It seems to me this is projecting today's standards onto ancient history, and you're doing so selectively. I am pretty sure that at the time it was completely normal in Christendom too to consider females adults after they first menstruate.

Finally, I don't think Islam is significantly more -- or less -- violent than basically any other organized religion I can think of save Buddhism. And recent history in the Middle East is much less due to Islam then it is due to their cursed oil and *Western* meddling because of that. Read some of the declassified reports in which the US called the ME a "great prize".

So, for example, Iran -- whom we are supposed to be so very affraid of -- has not fought offensive wars for centuries. They have been, however, been forced to defend themselves from Iraqi aggression (backed by US/UK) and been deprived of their democratically elected moderate government on two occasions, again mostly instigated by US/UK agents. The fundamentalists in Tehran (despicable though I find them) are a direct result of Western actions.

> I am pretty sure that at the time it was completely normal in Christendom too to consider females adults after they first menstruate.

Actually that lasted until much, much later - Shakespeare's Juliette is a mere 12 years old and yet "younger than her are happy mothers made" - marriage age in Dutch colonies average 16 for boys and 14 for girls until the 17th century and it wasn't until the 20th century that most countries saw it go higher than age 20.

As late as the 1950's it was still legal for a minor below the age of consent to marry in most countries if she had parental permission. Since then this has largely changed- while minors can marry in most countries today (provided their parents consent AND sign an emancipation form) they cannot do so before the age of sexual consent anymore.

Now this doesn't mean we should approve of it, or that we cannot judge ancient practices by modern standards (if only to avoid repeating the mistakes) but we certainly should be consistent when doing so - and there is absolutely no religion or culture on earth (least of all Christendom and Judaism) which is innocent of this particular practice,

The director didn't "trick" the actors - if the judge is correct in his analysis, the director committed fraud against the actors. No quotation marks, just a real criminal act, which, if true, also makes releasing the film automatically a criminally negligent act, (reckless endangenrment) again without any quotes around the facts.It's like Traci Lords may have genuinely tricked the directors of her first few films into thinking she was over 18, or she may have "tricked" them, but it doesn't matter, as you still have no right what-so-ever to watch an X rated film that features a person still a minor under US law. People can argue over whether the producers knew Ms. Lords was under 18, or not, but it simply doesn't change whether you have a right to watch those films, either way.
The argument in this case runs the same way, the judge has ruled that, at the very least, there wasn't a valid contract. (The producer was a previously convicted felon, who had legal restrictions as part of his probation against using an alias, and yet used one in representing himself to the actors and in signing their contracts, and who has pled guilty to this, and three other charges including making false statements, He's already convicted and serving time). Presumption of who is "tricking", or tricking whom also follows. You're trying to make this a debate over who may have committed this or that other act of trickery that is yet unproven, and may be just a matter of tort law either way, and ignoring that one side has been convicted of criminal acts, which makes your whole point moot. The contract is invalid, and all the actors have the right to seek protection from the consequences of their involvement. They are threatened with death, and that threat exists as a consequence of whole set of proven criminal acts.
They have that right in some jurisdictions even if every single one of them suspected, or even knew that the producer was an ex con, or that the law prohibited him from using an alias, just like we can charge one person who planned a bank robbery with murder in the commission of a felony, even though the 'victim' was one of his fellow robbers. But if you want to claim you know for an absolute fact that all the actors knew the producer was committing a crime, go right ahead and claim it. They still have a right to be protected as much as possible from being killed as a consequence of the producer's felonious actions, and you don't have a right to have them put at further risk, whether that feels like your first amendment right is what you're invoking, or not.

I didn't realize that laws now singled out YouTube. I also didn't realize that my rights are somehow more important than anybody else's. In fact, usually it's the opposite - I'm not usually allowed to exercise my rights if doing so would infringe on others' rights.

There are three relevant laws in this case. First is the long precedent of case law saying that a contract must be made in good faith to be enforceable. Second is the long-standing interpretation of copyright law saying that people own copyright on their own appearance. Finally, there's the DMCA's takedown provisions.

Typically, when making a movie or taking pictures of a person, you need the actors' or models' permission*. This is a pretty standard part of the release contracts, which are indeed covered under contract law. However, in this case it seems the producers didn't make the release contract in good faith. That means the contract is thrown out, so the actress still owns copyright on her likeness as used in the movie, so she has legal standing to issue a DMCA takedown request.

This is not an erosion of our rights. This is enforcing the rights we already have. Cindy Lee Garcia's right to control her identity is being upheld.

* Especially for photos, model appearance is usually pretty weakly protected, actually. If the picture's subject is even a little famous, there's an easy argument to be made for fair use. Similarly, movie extras don't really get legal grounds to claim the whole movie, but responsible producers will have them sign releases anyway. Main characters, on the other hand, can easily claim that their appearance is significant to the final work, defeating any fair-use defense.

No, publicity rights are a branch of state tort law. Copyrights are a sui generis branch of federal law.

And a copyright release is just a copyright license (or more rarely, an assignment), which means that it pertains to a particular creative work. A publicity release has to do with using someone's face, image, statements, etc. While you could conceivably have them both in the same form, it's rare that you'd need to or want to.

And I assure you, they are not related even the teeniest tiniest bit. Not in their policy goals, or how they originated, or which governments created them, or who gets them, or how long they last, or what they cover. There is no commonality.

Are you too lazy to google for the difference between copyrights and publicity rights? Perhaps this web page from the Library of Congress will help you out: http://memory.loc.gov/ammem/co... [loc.gov]

Second is the long-standing interpretation of copyright law saying that people own copyright on their own appearance. Finally, there's the DMCA's takedown provisions.

Typically, when making a movie or taking pictures of a person, you need the actors' or models' permission*. This is a pretty standard part of the release contracts, which are indeed covered under contract law. However, in this case it seems the producers didn't make the release contract in good faith. That means the contract is thrown out, so the actress still owns copyright on her likeness as used in the movie, so she has legal standing to issue a DMCA takedown request.

No no no no no no no. This is totally false and thrown around on here all the time as truth.You do NOT own copyright to your own appearance. You have certain publicity rights that prevent using your likeness for marketing/endorsement purposes without your permission. For example, I can photograph you in public, make giant 20 foot tall prints, exhibit and sell them at a gallery all without your permission. I cannot, however, use them to market the gallery show in advertising. You also have an expectation

Wow. Copyright on my appearance. So, the next time I commit a burglary, and some surveillance cameras actually record me in the act, I can claim copyright on my appearance to have the evidence quashed. Sounds good to me!

The important point is that the law says you are not allowed to see it on YouTube. Its a right that you had yesterday that you do not have today. Part of the massive, slow and irreversible erosion of our rights.

"It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conc

You're missing the point. The fact that you can get a copy of the movie using some technical workaround is meaningless.
The important point is that the law says you are not allowed to see it on YouTube. Its a right that you had yesterday that you do not have today. Part of the massive, slow and irreversible erosion of our rights.

This is precisely why we need a community-owned internetwork that is decentralized and outside of corporate and government control!

There's a difference in this case; the Striesand Effect refers to the fact that trying to take something off the internet not only doesn't work, but gives you lots and lots of negative publicity for trying to do so (and highlighting the original issue which would otherwise be obscure and largely unknown), causing more damage than the original problem.

This doesn't apply in this case because:1) The Innocence of Muslims is already known to pretty much everyone on the internet due to the events surrounding it in 2012.2) The publicity can only help Ms. Garcia in this case, as making her disapproval known will likely help stop the death threats.

People who make death threats aren't rational people. Expecting them to suddenly behave rationally is without merit. They'll just move on making death threats to the next person in line they have some perceived (real or imagined) gripe against.

If the death threats achieve the desired end, then why aren't they rational?

If the desired end is to make all Muslims look like a bunch of backwards hotheaded savages who can't tolerate the kinds of criticism and ridicule that Christians and Jews long ago learned to accept... then yes they achieved the desired end.

Nothing would please the extremists more than to cause a deep and lasting split between muslims and the rest of the world. There's 1.6 billion muslims in the world, most of them perfectly harmless. In fact, when you hear about extremists attacking girl's schools and killing everyone those children are probably muslim. The parents who sent them there are probably muslim. Many of the teachers probably are, too. The markets they attack, shops they burn, the people they threaten and harass are mostly muslim. Th

Well, she may get fewer death threats from Muslims and more death threads from internet freedom nutters...

Only if she actually wins in the end, and even then they'll likely be less terrorizing and more pathetic.

Really, I think it's likely that she expected to lose this fight, and it's the publicity surrounding it she was after - even a temporary injunction done in her name is likely to give her some relief from the death threats. And who knows? Maybe her actions could lead to the fatwa being lifted against the actors, and only targeting the producers/director/etc. who actually did this on purpose.

Its too low budget and obviously biased to be believed. If they had a point made by any fact, it was lost in their enthusiasm to trash Islam.However this opens the door to Christians taking down Atheist videos, Atheist taking down Christian videos, Islamic taking down Jewish videos, Jews taking down Islamic videos, $cientologists taking down Subgenius videos, Subgenii taking down $cientology videos and Anonymous taking down any server that displeases them.I think we can live with a few offensive videos and keep everyones grubby mits to their goddamn selves.

The complainant is not a random critic who disagrees with the content of the film. And under normal circumstances, an actor would not have the standing to file a takedown notice either. But this woman claims that she was duped into appearing in the film under unusual circumstances and the judge seemed to agree.

The complainant is not a random critic who disagrees with the content of the film.

It's close enough as to make no difference. Do you really think that EVERY actress/actor who finds the released movie different than the one she/he worked on can get the movie pulled when they have ZERO ownership of it? Absurd.

The movie was never really a problem anyway - all of the protests against it were shams, as are death threats against the actress (obviously). And yet we are willing to let any person who appeared in

Actually it makes a big difference. To file a court case, you have to have "standing". A random person who's pissed off does not qualify. You have to be directly involved in the situation.

I'm also surprised that an actor in a film was able to get any claim of ownership. An actor is expected to know that a movie can change due to rewrites, or editing, or any of the reasons that films normally change between the beginning and the end of the process. But if you can show that the producer was intentionally deceptive- that he planned the whole time to make an anti-Islam hit piece but told the actors something else, then that's a different story.

Susan Sarandon supposedly hated Rocky Horror and regretted ever appearing in it. Shall we tear down all the copies of that?

If nothing else, judges in cases like this should take to heart that once something is published on the Internet, it’s forever. I know no judge wants to hear, “You don’t have the power to do that, your Honor,” but the fact of the matter is there’s no way to ever remove something like this from public view.

Are you reading impaired. Did you fail to understand that the producers actually lied to the cast about the movie they were creating. That is the reason the contract was invalidated not because the movie was bad.

I've been watching a lot of old "Law & Order" episodes recently and every time a character says something pious about "constitutional rights" I can only snort with derision at what a period piece the show is now. In our time - what might be conveniently described as "The Cheney Era" - the only rights you have are those that pose no inconvenience to the government or the business interests that rent it. If it suits the government to have you killed, you will be killed - and with no messy court paperwork

The constitutional protections, and by extension US citizens, take in in the ass yet again.

I am not aware of a constitutional right to commit fraud. The project this person agreed to appear in bore zero resemblance to this one, and while it is true--she definitely has no right to control the work product she agreed to appear in, she has every right to sue over this other work that essentially puts her in the crosshairs of terrorists--totally without permission.

If there’s any suit available to this actress, it’s against the producer/director/etc. of the film for misrepresentation. There’s no conceivable way this should be a copyright case. There’s no way that anyone who was paid for appearing in it by the eventual rights holder (producer/etc.) should retain any right to issue take down demands contrary to the will of the actual owner of the copyright.

Short of a contract that stated she retained any rights (doubtful), then I can’t se

The producer in this case pled to four criminal counts relating to his contracts with the actors, and has been convicted and is now serving time. He also has a previous history of multiple felonies, including a previous fraud conviction. The whole of every single contract was invalidatable, not by some technicality, but by the very fact that he was a felon still on parole, and used an alias in all his dealings and signings, and that is entirely settled law that such contracts are invalid, before we even get

This is a very specific instance where the actor claims that she was hired for a film about one thing and the film turned out to be about something else. Would you have a problem with being hired for a film about the advantages of having a father figure but when the film comes out it is actually about the benefits of pedophilia? It is not about religion; It is about misrepresentations on the filming contract.

I would want to see a copy of the script before I performed one take of the movie. I just assumed any actor or actress would do the same.

The only scenario for which I could feel sympathy for Ms. Garcia would be if the script was radically changed during the course of filming to the point where it was completely different. Even then, my sympathy is limited because I would personally insist in having a clause in the contract to terminate early when big script changes occur.

Doesn't this mean that all videos critical of religion can potentially be subject to similar orders?

No. It does mean that all videos where the cast has been duped into starring in a film of a completely different nature than they thought they were making can potentially be subject to similar orders though.

A performer owns copyright of their performance, unless otherwise agreed. Most actors sign away these rights. She may have signed away those rights, but is arguing a breach of contract that would nullify that assignement of her copyright on her own work. If she is correct in that breach of contract assertion, then she should still hold copyright over her performance, and her scenes would have to be cut to end up with a work that the "owner" would be able to distribute.

A performer owns copyright of their performance, unless otherwise agreed.

No, not quite.

A mere performance, by itself, is not copyrightable. In order to be copyrightable, a performance must be fixed in a tangible medium. This always raises the question of whether the person doing the fixation is the actual author, or at least a joint author, with equal rights in the work. Basically it hinges on creativity. If the actor is in charge of their own costuming, lighting, cinematography, and direction, and everyone else is just following orders like a robot, with no creative input, and

It opens the door for every actor to sue the producers for copyright violation. The judge is basically saying that the director has no right to edit the film in a way the actors disapprove of, because the actors are being "creative".

She's claiming that the work for hire contract was deceptive and is not valid. The judge apparently agrees.

When this story first broke, some people tracked down the film's creator. He seemed like a real scumbag who would certainly be capable of shit like that. He is an Egyptian Coptic Christian, and his people have certainly been fucked over by the Muslim majority in that country. But that movie seems like a terrible idea on many levels.

Please people read and use some common sense. The producers lied about the movie, they did that because they knew that no one would work on the movie they were actually creating. Hence the invalidated contract.

Because if she succeeds is suppressing the film, she gets to keep her head.

But meanwhile, because even the more marginally sane decisions of the "Ninth Circus" are routinely blown away by the SCOTUS, this one will certainly not survive. Garcia therefore has a window of a few months to arrange for a new identity.

Whether you agree with the result of the ruling or not, this should not have been handled using copyright claims. An actor for hire with no ongoing royalties stipulated in their contract has no copyright claims on the content.

While it's pretty obvious why everyone involved wants this particular issue to go away, it would be...striking... if that sort of legal reasoning didn't end up causing even more of a disturbance among American corporations and their assorted hired guns than the movie did among the hicks 'n zealots subset.

Basically, something that looked a whole lot like a work for hire is suddenly not a work for hire anymore because the hireling didn't really approve of the changes made elsewhere in the production process. It's hard to imagine a theory much more dramatic than that, for any company doing business in copyrighted work slapped together by teams of employees.

In fairness, I don't envy the actress who now enjoys the attention of some of the real dregs of abrahamic monotheism, even by the tepid standards of the genre; but the idea that that makes the movie no longer a work for hire (rather than, say, a reckless endangerment suit) has no obvious 'bright line' boundaries that would prevent it from applying to much less dramatic situations. They say that doing 'rights clearance' in film sucks already, imagine if every cast member, and maybe even the memorable extras, gets veto power based on whether they approve of the post-production special effects or not... That'd be fun to try to insure.

The actors don't have a copyright unless rights are granted by the film maker. The script writers have a copyright (unless they're W2 employees) and the cameramen have a copyright (unless they're W2 employees) but the actors have nothing. Copyright vests in whoever puts the work into a fixed form or in their W2 employer if they are acting as an employee. There are a dozen or so exceptions but "actor" isn't one of them.

The actors don't have a copyright unless rights are granted by the film maker.

Not true. The actors have copyright over their individual performance as an artistic work. Normally this is assigned to the producers via their contract, but if the contract is voided, it reverts to them. Similar to the situation a record label would be in if their contract with a band was thrown out.

A performance does not have a copyright. Only things fixed in a tangible medium can have a copyright. The film of a performance can have a copyright. But that copyright vests in (drumroll) the photographer -- the individual who fixed it into a tangible medium. Not the actor.

Um, you may want to re-read the article we are talking about here because the 9th circuit says you're wrong:

In Wednesday’s ruling, Chief Judge Alex Kozinski, writing for the majority, makes a series of unusual copyright arguments to explain why Garica has rights in the film. While actors typically don’t have an independent copyright in their performances, Kozinski states that Garcia’s role was not a work for hire. The opinion also states that Garcia had given the producer an implied license to use her performance, but that his subsequent conduct went beyond the terms of the license — meaning that she ultimately retained the copyright and could use it against YouTube.

But actors have publicity rights. If their employment contract is declared invalid, they maintain the right to their publicity. That means the producer is distributing the film without legal standing in violation of copyright law.

Has nothing to do with copyright and only applies to marketing/endorsement, not use in an artistic work.

I watched it way back when it was being used as the excuse for Benghazi. At first I thought I was being trolled and that it was some joke video people were pointing to instead.

It's like a bad college freshman film class assignment. It was so bad I had to stop halfway through to wash my brain out. And you can tell the "anti-Muslim" language was overdubbed because the overdub audio is so clean.

If there's one reason it should be completely removed from existence, it's because of how horribly bad the thing is

Personally I always thought this movie was just racist/Islamophobic dreck, but now with the government finally finding a convenient excuse to censor it, I'm downloading all three of these copies and will be seeding them indefinitely once downloaded.

You can post all the anti-Jesus, anti-Buddhist, or whatever you want. Everybody has a right to an opinion. Unless, of course, that opinion is critical of Islam. Then your lucky if don't get killed because of some fatwa.

But lets all bend over, and grease ourselves up for an ideology that is far less tolerant that the Nazis ever dreamed of being.

There is no 1st amendment issue at stake here. No one has said the movie cannot be made, just that you may not lie in your contracts and trick people into working on something they would not normally do.

Again not a 1st amendment issue but a contract issue. As the producers no longer have a right to distribute with out Garcia's permission.

If it falsely makes it looks like the actors supported this film in a way they did not, they have every right to sue and try to get this taken down.

While this may indeed be the case, this has nothing to do with copyright law. Actors working for hire have no copyright claims unless explicitly documented in their contract. Having this video taken down using copyright claims is a miscarriage of justice.

While this may indeed be the case, this has nothing to do with copyright law.

Unless the actress has a copyright interest in the finished work, which apparently she does. It's right there in the summary. You did read the summary, right?

Seriously people, why are you fuckers commenting if you're not even willing to read the summary? And why are you jumping to the conclusion that a Judge just pulled this judgement completely out of his ass rather than at least starting with the assumption there's at least